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Commonwealth v. Cahill6/24/2004
302, § 3, and notes 8 and 9, supra, the Legislature created an ambiguity with regard to a § 24D disposition for a qualifying second offender. "We resolve in the defendant's favor, of course, any ambiguity in the statutes at issue." Commonwealth v. Valiton, 432 Mass. 647, 649 (2000), and cases cited. See Commonwealth v. Carrion, 431 Mass. 44, 45-46 (2000) (describing "rule of lenity").
Two aspects of the 2002 amendment to § 24D lend support to the view that the Legislature intended for qualifying second offenders whose prior conviction or assignment occurred ten or more years earlier to lose their license for no more than ninety days, once in their lifetime. First, in rewriting the second paragraph of § 24D, the Legislature eliminated language providing for a two-year loss of license, pursuant to § 24 (1) (c) (2), for those whose previous offense took place more than six but less than ten years earlier. Second, as previously noted, at the same time it amended § 24D, the Legislature eliminated the ten-year "lookback" provisions of § 24. See St. 2002, c. 302, §§ 1-4. If the Legislature had intended for the amended paragraphs of § 24 governing license revocation to apply to second offenders who otherwise receive § 24D dispositions, it easily could have included language to that effect. Contrast Commonwealth v. Valiton, supra at 655. Instead, St. 2002, c. 302, § 5, specifically stated that § 24D "shall also apply to any person convicted of or charged with operating a motor vehicle while under the influence of intoxicating liquor who has been convicted of such offense . . . 10 years or more before the date of the commission of the offense for which he is to be sentenced" (emphasis added). Contrast Dunbrack v. Commonwealth, 398 Mass. 502, 503 & n.3 (1986) (noting that under previous version of statute, § 24D disposition was expressly inapplicable to second offender whose prior conviction or assignment occurred within six years of second offense).
Absent language resolving the ambiguity between § 24 and § 24D, second offenders who qualify for a disposition under § 24D should be treated no differently from first offenders. Limiting their loss of license to a maximum of ninety days comports with the plain wording of § 24D, as amended, as well as that section's historical purpose of providing an incentive to persons who "have a potential for rehabilitation" to opt for probation and alcohol treatment. See Report, supra at 3. At the same time, our holding leaves intact the dispositional provisions of § 24 for first and second offenders to whom a § 24D disposition would not apply.
3. Conclusion
The judgment is vacated insofar as it orders revocation of the defendant's license for two years. The case is remanded to the District Court for a hearing to determine the period of suspension of the defendant's license for not less than forty-five nor more than ninety days, pursuant to G. L. c. 90, § 24D.
So ordered.
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